2/27/2005

Supreme Court decision could upset local case: The (Brazoria County TX) Facts, 2/27/05

By Elliott Blackburn

Attorneys in a land debate that will determine the future ofdowntown Freeport are hopeful that a similar case argued before the U.S. Supreme Court will help their cause.

The law is clear on a government's power to compel the sale of property for public use, called eminent domain, University of Houston law professor John Mixon said.

But a conservative shift in the Supreme Court makes the justices' review of that power an interesting situation, Mixon said. The Court heard arguments on the first of three eminent domain cases last week, a move that is surprising because the case is so unremarkable, he said.

"There's nothing new about it," Mixon said. "It's the sort of thing we would have said, 10 years ago, there's no question about it as long as they're willing to pay."

Western Seafood Co. is fighting the City of Freeport and the Freeport Economic Development Corp. for 330 feet of waterfront property along the Old Brazos River that belongs to the 50-year-old business.

Freeport wants the land for a $7 million marina project the city hopes would inject tourism, new jobs and higher property values into the economically depressed downtown area. The city has posted double-digit unemployment numbers since 1992.

In August 2003, Freeport approved committing $6 million to a 250-slip marina project along the Old Brazos River, to be developed by a private developer contributing $1 million.

Condominiums, restaurants and other businesses would follow, city officials hope.

"What we're trying to do is revitalize the economy, and that means doing some hard, hard things," Cameron said.

More than 1,800 miles away and three years earlier, the New London, Conn., City Council had similar plans. City leaders targeted a 90-acre, economically depressed area in the shadow of a brand new Pfizer Inc. global headquarters for a commercial and upscale residential district.

Like Freeport, New London authorized use of eminent domain to acquire properties from owners who refused to sell to the economic development corporation. A nurse named Susette Kelo and six other homeowners living in the neighborhood fought the plan, and in Dec. 2000 filed a lawsuit that traveled through the Connecticut judiciary and into the U.S. Supreme Court.

Urban planners and city leaders across the United States have anxiously watched the case, which could change the way eminent domain is used. Though a last resort, redevelopment projects like Freeport's marina would be lost without eminent domain, Cameron said.

"We did not want to use eminent domain," Cameron said. "I think we have very fairly and very straightforwardly tried to deal with everyone involved and have gotten nowhere. I think that without the tool of eminent domain, we would have had to say good-bye to this improvement in Freeport."

U.S. Southern District Court Judge Samuel Kent ruled in August in favor of Freeport's use of eminent domain to purchase the property.

Western Seafood Co. appealed that decision to the 5th Circuit Court, and a ruling at that level has stalled, waiting for the outcome of Supreme Court arguments on Kelo et al v. New London, Conn.

Last Tuesday, Supreme Court justices, after hearing arguments in the case, expressed sympathy for the plight of the homeowners in New London, but doubt that they had the power to stop the town's leaders.

It was encouraging that the court heard the eminent domain case at all, Western Seafood attorney Randell Kocurek said. Several other eminent domain cases also were scheduled for argument before the Supreme Court, he said.

"They could hand down a lot of those decisions all at once, and clean up a lot in eminent domain," Kocurek said.

John Hightower, a Houston attorney representing Freeport and the economic development corporation, said Tuesday's arguments made him "cautiously optimistic," but that it was a mistake to read too much into oral arguments.

"Obviously, there's some concern that the Supreme Court took the case in the first place," Hightower said. "This eases the concern a little bit."

Both attorneys felt there was enough difference between Western Seafood v. The City of Freeport and the Freeport Economic Development Corp. and the New London case to free their pending arguments from completely hinging on a Supreme Court ruling for either side.

Residents, not a business, were the plaintiffs in the New London case, Hightower noted. The developer in the Connecticut case was not the homeowner's neighbor, Kocurek said, referring to the fact that the developer is a relative of a neighboring landowner.

In the end, it will come down to politics, Mixon said.

The court has tilted to the right in recent years, which probably is why civil liberties litigation group Institute for Justice took up the homeowner's case, Mixon said.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas were likely to support the property owners, he said. Justice Ruth Ginsberg and others would support the town's right to condemn, and Justice Sandra O'Connor seemed to be on the fence, Mixon said.

Even if the court was more conservative, a revision of eminent domain would be a surprise, he said.

"It would take a substantial shift in doctrine for them to say that New London can't do this," Mixon said.

A decision on the Kelo case is expected by July. Gore put a longer time frame on his business's efforts.

"As long as misguided politicians use eminent domain to eliminate one business and enrich others, we'll continue to fight for survival," Gore said.

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